The Constitutional Court has struck off the roll the application by a former Ekurhuleni traffic officer who claims he was convicted of a motorist’s murder based on hearsay.
Sydney Siphiwe Nkabinde, imprisoned for 15 years for murder and corruption, sought to challenge the admission of the evidence of a witness who was killed before testifying in his trial.
But the hearing of his case by the Bench of the apex court hit a snag yesterday.
His counsel, advocate Nkosikhona Gama, told the justices the matter was not ready to proceed because the case particulars remained incomplete.
“It is correct that our house is not in order. The difficulty has been to secure the record. You would have seen that the record was filed, but it’s incomplete,” Gama said.
“The missing part is quite crucial for me to present a proper and full case for this record.”
Gama asked that the matter be struck off the roll until the outstanding particular were obtained.
He said his instructing attorneys faced difficulties in securing the records. “The difficulty still persists.
“I’ve advised my attorneys (that) we need to obtain the complete record.”
Justice Mbuyiseli Madlanga granted Gama’s request. “The application is struck from the roll,” he said.
Nkabinde was imprisoned for 15 years in 2017 for murdering 28-year-old Vuyo Xakane.
The State’s evidence, proven in the trial court, was that Nkabinde fatally shot Xakane after he offered him a camera as a bribe.
Nkabinde had demanded a bribe from Xakane, whom he had flagged down for speeding.
The traffic officer who was also formerly in the army and in Ekurhuleni mayor’s VIP Protection Unit, shot Xakane several times. One bullet struck him in the back of his head.
He sought to convince the apex court that Judge Ismail prejudiced him by admitting the evidence of the late Ntando Simelane.
A passenger in Xakane’s vehicle, Simelane was killed in an apparent hijacking in Joburg before he could testify in Nkabinde’s trial.
Judge Ismail admitted his statement in terms of the Hearsay Evidence Act.
“I believe the (trial) Court misdirected itself with regards to the law regarding the admission of hearsay evidence, which led to my serious prejudice,” Nkabinde stated in court papers.
The State was opposed to Nkabinde’s apex court bid. “The admission of hearsay evidence, in the circumstances of this case, is permissible,” said Arveena Persad, the Gauteng deputy director of public prosecutions, in reply papers.
“The trial court further considered whether the interest of justice favoured the admission of the hearsay evidence.”